Karnataka

Chitradurga

CC/148/2017

R.M.Chandrashekar S/o Mrutyunajayappa - Complainant(s)

Versus

The Branch Manager,HDFC Bank - Opp.Party(s)

Sri.P.S.Sathyanaryanarao

07 Sep 2018

ORDER

COMPLAINT FILED ON :29/12/2017

               DISPOSED ON:07/09/2018

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 148/2017 DATED:7th SEPTEMBER 2018

 

PRESENT :-     SRI.T.N.SREENIVASAIAH :      PRESIDENT                             B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI:

BSc.,MBA., DHA.,                LADY MEMBER

                                   

COMPLAINANT/S	R.M.Chandrashekar, S/o Mrutyunajayappa, aged about 30 years, Proprietor, Jayadeva Colour Lab, 7th Cross, JCR Extension, Chitradurga. Owner of Hyundai Eon Sportz Metallic car bearing Regn No.:KA-16-M-8519   (Rep by Smt/Sri.P.S. Sathyanarayana Rao, Advocate)
OPPOSITE PARTIES	1. The Branch Manager, HDFC Bank, Maganur Basappa Complex, Near Govt Bus Stand, BD Road Branch, Chitradurga.   2. The Authorised Signatory, HDFC Bank Ltd.,  Regd.Office at HDFC Bank House, Senapati Bapt Marg, Lower Parel (West), Mumbai-400013.   3. The Regional Manager, HDFC Bank Ltd.,, 3rd Floor, TB Revankar Complex, Vivekananda Hospital road, Hubli.   (Rep by Smt/Sri.Kashinath. K.P,  Advocate)

SRI. T.N. SREENIVASAIAH: PRESIDENT

ORDER

 

The complainant has been filed this complaint U/s 12 of C.P. Act 1986 against the opposite parties to direct the OPs to return the vehicle with good condition, failing which to direct the OPs to refund an amount of Rs.5.25 lakhs and to pay compensation of Rs.4.00 lakhs towards damages and mental agony, Rs.10,000/- towards costs and to grant such other reliefs.

 

2.     Brief facts of the complaint is that, he is a businessman by profession.  That on 30.05.2013 he has purchased Hyundai Eon Sports Metallic Car bearing Registration No.KA-16 M-8519, chassis No.MALA351ALDM189762D and Engine No.G3HADM165539 by availing loan of Rs.2,98,000/-  for a term of five years by paying down payment of Rs.1,25,000/- and other expenses.  The EMI is fixed at Rs.6,554/- per month.  Accordingly, the complainant has paid installment amount to the OP No.1.  But due to some financial crisis, the complainant was unable to pay the some installments regularly.  Till 21.03.2016, the complainant has paid Rs.3,83,321/-.  The complainant has purchased the said vehicle to improve his business and for his own purpose.  But in the month of January 2016, the OP without taking any procedure seized the vehicle and sold the same in a public auction for fancy rate.  Even then the OPs have collected the premium amount from the complainant till March 2016.  It clearly shows that, the OPs have cheated the complainant without providing any sufficient opportunities to clear the loan installment.  The loan installment amount will be ended on 05.06.2018, but the OPs have sold the vehicle within the provided as prescribed.  The complainant is running the vehicle for business purpose and for his own purpose to eke out his livelihood.  The cause of action for this complaint arose in the first week of January 2016 when the OPs have seized the vehicle without following the procedure from the custody of the complainant and hence, prayed for allow the complaint.

 

  3.   After issuance of the notice to the OPs, OPs appeared through Smt. K.P. Kashinath, Advocate and filed their version. 

 

According to the version filed by OPs, it is true that, the complainant has obtained the loan from the OPs for the purpose of purchasing the vehicle bearing Registration No.KA-16 M-8519, chassis No.MALA351ALDM189762D and Engine No.G3HADM165539 by availing loan of Rs.2,98,000/-  for a term of five years by paying down payment of Rs.1,25,000/- and other expenses.  The EMI is fixed at Rs.6,554/- per month.  The complainant has paid some installments and after that, he has stopped the payment of installment and ultimately, the OPs have issued legal notice on 21.03.2016 demanding to pay a sum of Rs.3,83,321/- towards the loan amount.  Further the allegations made in the complaint are denied as false and the complainant is put to strict proof of the same.  It is further submitted that, the complainant is barrower along with Mr. R.V. Mruthyunjay as co-borrower had availed Auto loan of Rs.2,98,000/- for the purpose of purchasing Hyundai Eon Sportz bearing Registration No.KA-16 MB 8519.  Both the borrowers have executed loan agreement dated 30.05.2013 with the OPs with loan account No.24611697 along with undertaking to repay the loan amount with interest in 69 equated monthly installments of Rs.6,554/- each starting from 05.07.2013 to 05.06.2018.  As per the terms and conditions of the loan agreement, the said vehicle was hypothecated to OPs Bank towards the security for repayment of the loan amount.  It is further submitted that, the complainant was irregular in repayment of the installments and accordingly, the OPs have issued loan recall notice dated 10.08.2015 demanding them to make payment, but even after service of notice, the complainant did not come forward to make payment as per the terms and conditions of the loan agreement.  It is further submitted that, as per the terms and conditions of the loan agreement, the OPs have issued appointment of arbitrator notice dated 21.08.2015 and thereafter the OP Bank had referred the dispute to sole arbitrator Mr. Umesh S. Hunashimarad in Arbitrator case No.558/2015 and the sole Arbitrator had passed the interim order u/Sec.17 of Arbitration and Conciliation Act permitting the Bank for repossession of the vehicle.  In spite of notice has been served to the complainant, the complainant did not appeared and contested the case.  On 27.11.2015, the sole arbitrator passed an order directing the complainant to pay a sum of Rs.2,49,964/- along with interest at the rate of 18% and also permitted to repossess and sale the above said vehicle to adjust the sale proceeds towards the loan due.  Accordingly, the OPs had repossessed the said vehicle on 29.01.2016 after sending the repossession intimation to the concerned jurisdictional police and the OPs also issued pre-sale notice dated 30.01.2016 to the complainant intimating him about the repossession of the vehicle and to pay a sum of Rs.2,89,997/- on or before 15.02.2016 and to obtain release of the vehicle.  In spite of service of notice, the complainant had not turn up to make the payment and to obtain release of the said vehicle.  The OPs have auctioned and sold the vehicle on 23.03.2016 to the highest bidder for a sale consideration of Rs.1,60,200/-, the same has been adjusted to the loan account of the complainant.  After adjustment of the above said amount, the complainant is still due of Rs.60,842/- including the repossession charges.   The complaint filed by the complainant is not maintainable either in law or on facts, this Forum has no jurisdiction to entertain this complaint because the complainant has purchased the vehicle for improvement of his business.  Such being the case, Section 2(d) of the C.P Act is not attracted.  On this ground also, the complaint is liable to be dismissed.

 

4. Complainant himself examined as PW-1 by filing affidavit evidence and relied on documents Ex A-1 to A-4 and closed his side.  OPs have examined one Sri.C.R. Anand Kumar, Legal Manager of HDFC Bank as DW-1 and relied on Ex.B-1 to B-4 documents and closed their side. 

 

5. Heard the arguments.

 

6.     Now the Points that arise for our consideration for the decision of the complaint are that:-

 

Point No.1:-Whether the complainant proves that, the OPs have committed deficiency of service by violating the terms and conditions of the loan agreement by seizing the vehicle and sold in a public auction and further the complainant is entitled for the reliefs as prayed in the complaint?

 

Point No.2:- What order?

 

        7. Our findings on the above points are as follows.

        Point No.1:- In Negative.

        Point No.2:- As per the final order.

 

::REASONS::

 

8. Point No. 1:- The complainant is the business man and accordingly, he purchased the above said vehicle by obtaining loan from the OP No.2 for the purpose of the above said vehicle bearing Registration No.KA-16 M8519 by availing loan of Rs.2,98,000/- for a term of 5 years.  The complainant has paid down payment of Rs.1,25,000/- and further agreed to pay a sum of Rs.6,544/- to the OPs by way of EMI per month.  Accordingly, the complainant has remitted the EMI amount to the OPs.  After that, due to stoppage of business, the complainant has not paid the installment regularly to the OPs.  The OPs have issued notice to the complainant along with interest.  After the service of loan recall notice, the complainant did not turn up and failed to pay the amount.  Finally, the OPs have referred the same to sole arbitrator.  The sale Arbitrator has issued notice to the complainant to appear before it and give explanation as to why they have not paid the installment amount regularly.  But the Sole Arbitrator passed an order directing the OPs for repossession of the vehicle and sold the same in a public auction and to adjust the same to the loan account of the complainant.  As per the orders of the Sole Arbitrator, the OPs have followed the procedure.  Accordingly, the OPs have issued notice to the complainant demanding to pay the amount within 15 days.  After service of the notice, the complainant never come forward to pay the award amount as passed by the Sole Arbitrator.  Finally, the OPs have sold the seized vehicle in a public auction for a sum of Rs.1,60,200/- and the same has been adjusted to the loan account of the complainant and intimated the same to the complainant and demanded to remit the balance of Rs.60,200/-.  Here the case on hand is that, the OPs have not committed any deficiency in service and they have not violated any terms and conditions of the loan agreement and they have followed the procedure as contemplated under law.

 9.    We have gone through the entire documents, affidavits filed by both the parties.  No doubt the complainant has borrowed a loan from the OPs for the purpose of purchasing the above said vehicle for using the same for his business purpose.  But as per the documents, the complainant has failed to pay the EMI regularly to the OPs.  After that, the OPs have issued notice to the complainant and demanded to pay the EMI amount, but the complainant has not paid the same and never turn up to pay the arrears of loan amount.  The OPs have referred the matter to the Sole Arbitrator, the Sole Arbitrator has issued notice to the complainant to appear and to file objection, but the complainant has not appeared before the Sole Arbitrator.  Finally, the Sole Arbitrator has passed an order directing the OPs to take possession of the vehicle and sold the same in a public auction and to adjust the sale proceeds to the loan account of the complainant.  As per the directions and orders of the Sole Arbitrator, the OPs have issued notice to the complainant and called upon the complainant to take back the seized vehicle on payment of the loan amount within 15 days.  After service of the notice, the complainant never turn up to give any explanation or paid the loan amount due.  Finally, the OPs have sold the vehicle in a public auction and remitted the auction amount of Rs.1,60,200/- to the loan account of the complainant and demanded to pay the remaining loan amount of Rs.60,200/-.  The OPs have followed the procedure as contemplated under the law.  They have not violated any terms and conditions of the loan agreement and they have followed the directions of the Sole Arbitrator.   Hence, we come to the con conclusion that, the OPs have not committed deficiency of service.   Accordingly, we answer Point No.1 held as affirmative. 

 

10.   Point No.2:- As discussed on the above point and for the reasons stated therein, we pass the following:

 

 

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is hereby dismissed.  No order as to costs.

 

 

 

(This order is made with the consent of Lady Member after the correction of the draft on 07/09/2018 and it is pronounced in the open Court after our signature)

 

 

 

 

 

 

LADY MEMBER                                       PRESIDENT

 

 

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:-Complainant by filing affidavit evidence

Witnesses examined on behalf of OPs:

DW-1:- C.R. Anand Kumar, Legal Manager of HDFC Bank by filing affidavit evidence.

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Statement of account
02	Ex-A-2:-	Legal Notice dated 20.05.2017
03	Ex-A-3:-	Certificate of registration
04	Ex.A-4:-	Postal receipt and acknowledgement

Documents marked on behalf of OPs:

01	Ex-B-1:-	Loan application form
02	Ex-B-2:-	Loan agreement
03	Ex-B-3:-	Arbitral award
04	Ex.B-4:-	Statement of account

 

 

 

LADY MEMBER                               PRESIDENT

Rhr.